UPDATE: Missouri ruling makes school harassment cases easier to prosecute

Wednesday, April 18, 2012 | 7:43 p.m. CDT

KANSAS CITY — Although just in elementary school, the boy climbed under a bathroom stall, grabbed another boy's genitals and taunted him. The inappropriate touching and name calling continued in the bathroom and elsewhere in the Kansas City school.

What followed was a lawsuit against the Kansas City School District that is setting legal precedent in Missouri. On Tuesday, a state appeals court ruled for the first time that the Missouri Human Rights Act can be used to allow a public school district to be sued for sex discrimination over actions involving two students.

Parents and students could sue previously under the federal gender-equity law Title IX, but the standard for proving those cases was more difficult than under the Missouri Human Rights Act.

Attorneys for the alleged victim said Wednesday that the threat of litigation could encourage schools to do more to combat harassment. But the Missouri School Boards' Association expressed concerns that the ruling could lead to more litigation — and not just against public schools but against day care providers, Little League teams and anyone working with children.

"My concern with this case is parents are going to connect a couple of incidents and say, 'The district should have known. You should have been on notice. You should have connected the dots,'" said Susan Goldammer, an attorney for the association, which filed a legal opinion in the case in support of the Kansas City district. "And that's going to increase the liability of districts and not just districts but a lot of entities across the state."

The district could seek a rehearing by the full Missouri Court of Appeals' Western District, which issued the ruling. School District spokesman Andre Riley said the district was reviewing the ruling but couldn't immediately comment further.

Court filings said the harassment began in May 2009 at the now closed Swinney Elementary School, leading the alleged victim to feel anxiety, fear and depression. Matt O'Laughlin, an attorney for the boy, said Wednesday that his client's harasser was in the lower elementary grades at the time but couldn't be more specific.

"He would go up and grab kids on their bottoms and grab their genitals while waiting in line. So they knew that this kid has those kinds of sexualized tendencies, yet they still let him use the bathroom alone with other children," O'Laughlin said.

Initially, a trial judge dismissed the lawsuit. But the Missouri Court of Appeals said his claim met the requirements of the Missouri Human Rights Act for filing a discrimination case, among other things finding that a public school is a public accommodation.

"The MHRA's prohibition against sexual harassment in the workplace extends to render an employer liable for sexual harassment committed by one employee against another employee," the judges wrote in the ruling. "Undoubtedly, the right of a student to receive an education free from sexual harassment is as important as the right of an employee to be free from such harassment in the workplace."

A 1999 U.S. Supreme Court ruling found that students and parents could sue school systems over harassment under the federal gender equity law Title IX, but to win damages plaintiffs must prove schools acted with "deliberate indifference." It is easier to sue under the Missouri Human Rights Act because it requires plaintiffs to prove only that schools "knew or should have known" about harassment.

"That is one of the reasons we brought it," O'Laughlin said. "We think the federal standard is too high. Schools should take more proactive measures to stop (sexual harassment). The fact is the federal standard has been in place for a while, and there is still quite a bit of sexual harassment. It is clearly not working in terms of preventing this sort of thing. I think this ruling will be helpful in decreasing the amount of sexual harassment, at least in Missouri schools."

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